As discussed on today’s BradCast, little if anything will ultimately get corrected in our broken democracy unless and until we have reform of our corrupted U.S. Supreme Court. Time to start talking about it, so we can press candidates for Congress this year on whether they will support it. [Audio to full show follows this summary.]
Before we get to our guest to discuss exactly that today, election results are in from statewide Primary Elections in two states and a critical Special Election in a third on Tuesday.
In Ohio, few surprises. But two key elections for 2026 are now teed up. Former Democratic U.S. Senator Sherrod Brown will attempt to unseat Republican Sen. Jon Husted, who was temporarily appointed to the seat vacated when J.D. Vance ascended to the Vice Presidency. This contest is likely to be one of the most expensive races of the year, as Dems hope to flip a “red” Senate seat to “blue” in a state that has been trending to the right for years.
One of the nation’s most annoying Republicans, Vivek Ramaswamy, one Donald Trump‘s early DOGE Bros rejects, is officially set to take on Democratic Dr. Amy Acton for Governor in Ohio. Acton won the hearts of many as the Buckeye State’s top medical official and a regular presence during the COVID Pandemic. Also, Ohio Republicans in the 9th U.S. House District rejected Trump’s former Deputy Director of ICE in the GOP primary (she came in third), in favor of former State Rep. Derek Martin who will, once again, take on Democratic Rep. Marcy Kaptur for her Toledo area seat, after it was made slightly more Republican by redistricting last year. Kaptur defeated Merrin by less than one point in 2024.
In Indiana, the biggest news was that at least five Republican state Senators were turfed out by Trump-endorsed primary challengers as part of his revenge campaign against the GOP-controlled state Senate that rejected his demand to gerrymander the already very “red” U.S. House map in the Hoosier state. One of his candidates lost to an incumbent, and another race is a virtual tie, with the Republican incumbent leading the Trump-funded challenger by a mere three votes! Good luck to all in the recount. Most of the state is forced to vote on 100% unverifiable touchscreen voting systems.
And finally, in Michigan on Tuesday, a special election for the state Senate in a very narrowly divided District largely echoed all of the special elections we’ve seen across the nation over the past 15 months since Trump’s return to office. In a District won by Kamala Harris in 2024 by less than a point, Democratic firefighter Chedrick Greene snuffed out his Republican opponent by nearly 20 points(!) on Tuesday, ensuring that Democrats will retain their majority control of the state Senate.
NEXT UP… Unfortunately, what FDR said in one of his Fireside Radio Chats, on March 9, 1937, rings all too true today…
Last week, the activist rightwing U.S. Supreme Court majority unleashed chaos and confusion across the nation with their wildly corrupt ruling in Louisiana v. Callais. Many Republican-controlled states, particularly in the old Confederate South, are now scrambling to redraw majority-minority U.S. House districts out of existence. After blocking other election law changes in recent years for being made too close to elections — even those that would prevent thousands from being disenfranchised — the High Court has hypocritically given the okay to literally rig House District maps in the middle of Primary season, even with thousands of votes already cast in several states where Republicans are now suspending the election to gerrymander their maps again for 2026. Tennessee was the latest to begin that process today, following on the heels of Louisiana and Alabama since just last week.
The corrupt ruling in Callais, unfortunately, is hardly the only one made by the disgraceful Roberts Court in recent years, in seemingly direct contravention of the U.S. Constitution. And now time for a long overdue conversation about how Congress, as per the Constitution, must legislate reforms to this radical, runaway, renegade, Republican Court.
We’re joined today to discuss exactly that by ALICIA BANNON, Director of the Judiciary Program at NYU’s Brennan Center for Justice, where she is also Director of its Kohlberg Center on the Supreme Court. Two of her colleagues at Brennan, Miriam Rosenbaum and Emily Whitehead, recently penned an article for Time headlined “The Supreme Court is Dangerously Broken. Here’s How to Fix It.”
“Public confidence in the Supreme Court right now has plummeted. And it’s plummeted, frankly, for good reason,” Bannon tells me today. “We have a Court that has aggrandized its own powers in ways that have been deeply destructive to our democratic institutions. It’s not playing the role it’s supposed to play in our system of checks and balances, which gives Congress the power to pass laws and not have them overturned by the Supreme Court based on specious readings of the Constitution.”
She charges the Court “has taken on a role that’s deeply destructive to our democratic institutions,” but finds it “heartening that we are starting to hear a more serious conversation about Supreme Court reform.”
Like me, she sees the Callais ruling as wholly inconsistent of the plain text and history of the Voting Rights Act,” and describes it as “an inappropriate assertion of power by the Supreme Court, because the Constitution is crystal clear that Congress was empowered to enforce the right to vote under our Constitution.”
But that’s hardly the only reason the Court is now “prime for reform” by Congress, as Bannon details today, explaining how they have done that many times over the years, as part of their Constitutionally defined duties.
Among the reforms discussed today…
- “Term limits for Justices would be transformational”, says Bannon, explaining both why and how, with expansion of the number of seats on the bench, they would work, allowing Presidents to name two Justices to the Court in every four-year term.
- A “fast-track process where, after Supreme Court rulings, there’s a system in place so that Congress is equipped to move quickly [akin to the Congressional Review Act] and bypass some of the procedural hurdles that you see in other contexts [such as the Senate filibuster], so that they can be responsive to those Supreme Court rulings.”
- Mandatory time-tables to prevent treachery such as Mitch McConnell’s refusal to hold hearings or a vote for Barrack Obama’s nominee to the High Court, Mitch McConnell, because eight months was supposedly too close to the 2016 Presidential election, only to allow him to seat one of Donald Trump’s nominees, Amy Coney Barrett, just 8 DAYS before the 2020 election.
There is more. Tune in. But now is the time for this conversation. In advance of this year’s critical midterms.
“It can’t be a moment where we just sit back and say that the fight is lost before it’s begun,” Bannon argues. “I think part of the job now, for all of us, is to say that this is a real crisis in our democracy, and we need to come together and demand a Court that is fulfilling the role we need it to play.”
Once again thanks for the extremely informative session, you are a treasure and continue to provide an invaluable service. I will be sharing this.
Thank you so much, Pam! 😊
How Congress Used to Leverage the Court
https://www.stevevladeck.com/p/...ed-to-leverage
(off MBR)
The only ones that can take them out, at the moment, are in the same political party that put them in there (“Consent of the Senate”). That takes a 2/3 vote in the Senate, following a trial based on the impeachment in the House of Reps by majority vote.
Don’t hold your breath.
So glad you had Alicia Bannon on. I think her article, which I’d previously copied and saved, contains a brilliant means for SCOTUS reforms. All of those reforms are contingent upon Dems retaking the House & Senate this year and retaking POTUS in ’28.
The Dems can retake the House, Senate, and Presidency but that does not mean they can change the makeup of the Supreme Court.
It takes a two-thirds majority in the Senate to remove any one of them.
The mental ICE in the brains of the Republican Party Six on that court and the 53 in the Senate, is not going away until much more degeneration in our system takes place.
That is because “when we fight we win” is symptomatic of an unawareness posing as savvy.
Just sayin’ since 2009 (Here Come De Conservative Judges, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17).
“The Kohlberg Center promotes urgently needed changes [at supreme count], including term limits and an enforceable ethics code for the justices.” (Brennan Center For Justice).
That can only be done by constitutional amendment which is a thousand times more difficult than impeachment and removal one at a time.
Where do you get the impression that those things “can only be done by constitutional amendment” ???
“Like in any other impeachment process—including for Presidents and judges—the power to impeach a Supreme Court Justice first lies with the House of Representatives. A House legislator must introduce an article of impeachment before a vote is held. If a majority of the House votes in favor of impeachment, the articles then move to the Senate for a trial. Two-thirds of the Senate must then vote to convict, which would remove the Justice from the court. ” (TIME)
“The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.”
…
“A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States).”
(OFR)
“those things” … Brad
“term limits and an enforceable ethics code” (Kohlberg Center)
“enforceable ethics code for the justices.” – Kohlberg Center
(Good Behavior Clause Doctrine).
Still failing to see which of the things we discussed would require a Constitutional Amendment? As far as I can tell, they are all within the purview of Congress, should they be able to act like a legitimate body, at some point.
“Still failing to see which of the things we discussed would require a Constitutional Amendment”
Start with replacing lifetime terms with “term limits”.
(Senate Committee on the Judiciary).
Here’s the entirety of what Article III, Section 1 has to say about “lifetime appointments” for Justices…
That’s it. That’s all. Yes, it’s been interpreted to mean “lifetime appointment”. But, for those of us Constitutionally conservative textualists, I see nothing in the original text of the document that mandates lifetime appointments. Congress has decided that. And Congress can change it’s mind.
I don’t think anything else that Alicia and I discussed would require a new Amendment. (But open to be shown that I am wrong, natch.)
“The idea that federal judges should serve during ‘good behaviour’ was uncontroversial [to the framers]. That proposal first appeared in the ninth resolution of the Virginia Plan, and it never provoked any criticism thereafter. Alexander Hamilton’s Federalist No. 78 helps us to better understand the framers’ commitment to tenure during good behavior. There we learn that tenure during good behavior was deeply interwoven with judicial review.” (Brennan Center).
Thus, when what it meant then is different from a limit in the span of time, then “term limits” is a change from what it was then.
That means no tenure limits except “bad behavior”.
“Bad behavior” is an allegation challenging the life-long tenure originally conceived.
Congress litigates the alleged not-good-behavior by initiating an impeachment hearing and vote in the House.
A majority vote in the House suffices to continue the process.
Then, following another hearing of the allegations in the Senate, the Senate removes the judge (ends the tenure) if there is a super majority vote (2/3 … 67 votes out of 100) agreeing that the judge had not-good-behavior.
Otherwise the tenure continues to be ongoing during good behavior (dying is bad behavior).
Thus, “term limits” asserting a limit in years requires a textual change to the US Constitution.
The only valid years term limit that can be imposed by the Senate is 0 years (zero years).
That is done by a vote of Senators NOT TO CONSENT to a nomination of the President for a Federal District Judge or a Supreme Court Judge.
If I was arguing AGAINST instituting term limits, the case you put forward is absolutely the one that I would use. Even though it doesn’t say anything about “lifetime appointments” in the actual Constitution. Yes, that’s how it was apparently (originally) interpreted at some point.
That said, if I was a Democrat and had enough power in Congress and the White House to do it anyway, I would do so. Let the Repubs challenge it in the courts. Who’s going to ultimately decide it? The same Justices who would be term-limited by the new law? That’s a Constitutional crisis I am willing to have at this point.
“that’s how it was apparently (originally) interpreted at some point”
That point was before it was written, during discussion of it:
(Brennan Center, emphasis added).
The whole aware discussion of “term limits” is about changing what the framers did, what presidential nominating and Senate conformation, and what federal judicial tenure has always been: lifetime tenure. The only way to do that is a constitutional amendment. Until then, the impeachment and removal from office is the only other way it can be done against the will of supreme court judges. Only they can change their tenure by resigning or retiring or dying.
Again, that is the argument I would certainly make in opposition of a law that imposes term limits on the High Court (or any others!) But “during good behavior” does not mean, on its own, “lifetime appointment”. If there are Federalist Papers on that point, I’d like to seem them. Even now, most officials are allowed to serve only during “good behavior”, but have term limits to those periods of good behavior.
And, in truth, even if there are Federalist Papers specifically speaking to “good behavior = lifetime appointment”, I would STILL vote to pass a law, at this point, to change that, and let it all be sorted out in the Courts thereafter.
I’m quite certain I *might* have given you a different answer on that, even 5 years ago. But not now.
“159. The notion that the language of the Constitution calls for life tenure is by no means a novel interpretation. Documents from the drafting era of our country illustrate this interpretation of, and intention by, the language of the Constitution, none more candid than Alexander Hamilton’s Federalist No. 79, stating that if judges behaved properly in their positions, they would be “secured in the places for life.” Recorded discourses during the ratification conventions discuss the term of the Presidency as a four-year term, while juxtaposing it with the terms of federal judges who may “continue for life” in their terms if they continue to show good behavior. Thus, the tradition that we have collectively followed when appointing and confirming judges to federal courts has been one of life tenure or, as described in a more particular manner, a tenure that allows a judge to be secure in their position for the remainder of their legal career so long as they demonstrate good behavior. ”
(Stetson Univ., emphasis added).
That is why the term limits thingy is called the Term Limits Amendment by Congress Members who advocate it.
“Thus, the tradition that we have collectively followed” [emphasis mine]
Right. And TRADITIONS as we have been taught over the past year or more — by the people who would oppose such a new law (including the 6 Supreme Court Justices in the majority themselves) are clearly meant to be broken. Often, even, by specious means.
Here, it would not be specious. And, in fact, perfectly Constitutional as many have and are, arguing. For example, see the TERM Act.
Beyond that, see my previous comment, re: I don’t actually care what is found in the Federalist Papers regarding this point anymore. (Though, once again, as noted, I respect and appreciate your argument to the contrary. )
The ranking member on the Senate judicial committee, Senator Durbin (D) in an interview on MSNOW stated that hearings for nominees to federal judgeships was “about lifetime tenure”, among other things.
It has been exactly that for hundreds of years.
That interview of Senator Durban was yesterday.
I agree that term limits, in terms of years, is a no brainier and both should be done and should have been done.
But it takes a constitutional amendment to do so. Try arguing that it only takes a statute passed by congress and signed by the president to the change the current lifetime tenure of the federal judiciary.